Archive of Prominent Section 106 Cases
New Mexico: El Rancho Electric Substation
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October 1998 Developments
In August, the Bureau of Indian Affairs (BIA) transmitted to the Council and other consulting parties a Memorandum of Agreement (MOA) for the treatment of effects of the El Rancho electric substation on the Los Matachines de El Rancho Dance Site. The MOA resulted from a series of consultation meetings attended by BIA, Rural Utilities Service (RUS), the Jemez Mountains Electric Cooperative (JMEC), the Pueblo of San Ildefonso, the El Rancho La Comunidad de Tres Culturas (La Comunidad), and the New Mexico SHPO.
Although BIA had agreed to consider relocating the electric substation away from the dance site, the consulting parties were unable to identify a reasonable location. Based on the recommendations of the New Mexico SHPO, the MOA provides for the construction of a screening wall around the substation and for JMEC to fund improvement of a nearby parking area that will allow the dances to continue in an area further from the electric substation.
All parties except the Council and La Comunidad have signed the MOA. The Council has requested that La Comunidad provide staff with its views on the final MOA before we determine whether to execute the agreement.
In 1991-1992, JMEC built a new electric substation on San Ildefonso Pueblo land in the vicinity of El Rancho, New Mexico. The one-acre substation was needed to replace a nearby temporary facility. The San Ildefonso Tribal Council and BIA approved a lease with JMEC in 1989, and the Rural Electrification Administration (now RUS) approved financial assistance for the project one year later. Both actions were conditioned on the JMEC completing a cultural resource survey (as required by Section 106) prior to the start of construction.
Construction of the substation began in November 1990, without the required survey. It was subsequently determined that the parking lot of a local cantina, used for the performance of traditional Hispanic matachine dances, was eligible for inclusion in the National Register of Historic Places as a traditional cultural property. Construction of the substation immediately adjacent to the dance site created a significant visual intrusion and prompted objections by local residents.
Los Matachines de El Rancho, New Mexico, dance ground and cantina
In 1991, La Comunidad, representing the local community and users of the dance site, filed suit to stop construction. The district court judge issued a temporary restraining order to stop further construction and ordered BIA and RUS to comply with the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). (For additional information on the lawsuit, see the Council's publication Federal Historic Preservation Case Law, 1966-1996; no. 108).
Although the Council contacted both RUS and BIA during developments in early 1991, both agencies indicated an unwillingness to consider dismantling and/or relocating the substation because of the costs involved. The Council and the New Mexico SHPO concurred that unless removal of the substation received serious consideration, meaningful consultation was impossible. Although the Council did not pursue a finding of foreclosure, it did write to BIA and RUS stating that failure to consult with the Council prior to licensing or project approval prevented the Council from commenting on the undertaking.
Without informing the Council, BIA and RUS went on to prepare an Environmental Impact Statement for the project and consulted further with the SHPO to try to meet the court's requirement to comply with NEPA and NHPA. A Record of Decision (ROD) issued in 1997 by both BIA and RUS selected the existing location because 1) it was the designated electrical "load center" of the El Rancho area; 2) environmental impacts, except those associated with the dance site, were determined to be minimal; and 3) because the total estimated cost of the existing site would be the lowest of the alternatives considered.
Despite issuance of the ROD, however, NHPA compliance remained to be fulfilled. Under normal circumstances, the Council would not engage in consultation after-the-fact. Nevertheless, the court order was clear, and, in order to assist RUS and BIA in complying with the judge's order, a compromise was struck. First, after a series of discussions among BIA, RUS, the New Mexico SHPO, and the Council, BIA wrote to the SHPO stating its intent to suspend the ROD so that Section 106 consultation could proceed. Reversing its earlier position, BIA indicated a willingness to consider a full range of options for treating the adverse effects of the substation on the dance site, including locating the facility elsewhere. In response, to these events, the Council asked to participate in the consultation.
Staff contact: Carol Gleichman
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